Taking liberties

Taking Liberties: The War on Terror and the Erosion of American Democracy

By Susan Herman

Post-9/11 surveillance measures have made it far too easy for the government to review our personal and business records, telephone and e-mail conversations, and virtually all aspects of our lives.

For example,

• Under the so-called “library provision” of the USA PATRIOT Act, the government can demand that custodians of records — including librarians, schools, social work institutions, and internet service providers (who, in these days of cloud computing, have access to a mind-boggling array of information about us) — turn over those records without having to explain to a court why they want those records, or whether the person who is the subject of the records has done anything suspicious.

• Under the expanded “National Security Letter,” the FBI and other agencies can demand some records from telecommunications and financial services providers without any court order at all and then gag the recipients.

• Patriot Act amendments let the government spy on Americans using a Cold War era statute designed for tracking the covert activities of Soviet agents.

The Constitution’s Fourth Amendment, our principal protection against unreasonable searches and seizures, generally requires government agents to convince a neutral and detached magistrate that they have “probable cause” before conducting an arrest, or searching or seizing property.

But the very goal of these provisions of the USA PATRIOT Act and other post-9/11 surveillance measures is to let the government avoid this protective protocol.

The role of the courts in reviewing applications for eavesdropping or other types of searches and seizures is reduced; the power to spy on innocent Americans expanded.

What’s wrong with giving the government this broad power just in case, some people ask?

Why should I care whether the government knows what I am doing if I am not doing anything wrong?

But diluting Fourth Amendment protection is dangerous.

“Our ancestors who wrote the Fourth Amendment feared the potential for political repression, selective use of power, and, ultimately, a police state.”

As Supreme Court Justice and Nuremberg prosecutor Robert Jackson once warned, “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”

Our ancestors who wrote the Fourth Amendment feared the potential for political repression, selective use of power, and, ultimately, a police state. In fact, their insistence on having their “persons, houses, papers, and effects” (in the words of the Fourth Amendment) protected against government agents searching for seditious literature or for untaxed tea or rum was one of the principal causes of the American Revolution.

Uncontrolled search and seizure is also bad for business.

When customers/clients/patrons know that any information they share with their bank, school, or social work agency is only one easy step away from government eyes, they may be reluctant to create those records by sharing information in the first place.

And it is not only surveillance authority that has been expanded post-9/11. One Patriot Act provision allowed seizure of the assets of an American charity, KindHearts for Charitable Humanitarian Development, with no warning and no hearing, even though the charity was not on any blacklist. And the government opportunistically employed a statute designed for detention of material witnesses to arrest an American citizen, Abdullah al-Kidd, despite the fact that they lacked probable cause to believe he had done anything wrong. He was never called to testify at any proceeding.

Some belittle Fourth Amendment principles as “technicalities.”

But as scholar Elaine Scarry noted, the post-9/11 powers distort the Constitution’s vision of the relationship between the individual and the state. “The Patriot Act inverts the constitutional requirement that people’s lives be private and the work of government officials be public.”

The Fourth Amendment protects more than just our “persons, houses, papers, and effects.”